There’s been a yearslong political fight over the issue of mail-in ballots in Texas. This struggle has taken on a new intensity in the wake of the coronavirus from China and the feeling that Texas’ shift from red, if not to blue then at least purple, is one election cycle away.
Texas law on mail-in voting is simple enough. A voter qualifies to receive a by-mail ballot if they’re 65 and older, have a disability—defined as a “sickness” or a “physical condition” that prevents them from appearing at the polling place without assistance or without injury to their health—will be out of the country on Election Day and early voting, or (rarely) are in jail and otherwise eligible to vote. That’s it.
As campaigns and independent political committees seek every advantage at the ballot box, the use of mail-in ballots has ballooned from less than 1% of the votes in 2006 to more than 6% during the hotly contested U.S. Senate race between Sen. Ted Cruz and then-Rep. Beto O’Rourke. Campaigns love mail-in ballots as it’s one nearly sure way of locking in votes for a candidate. But one odd thing happened during the 2018 cycle: the average age of those using mail-in ballots who were under 65 plunged by six years compared with 2016. In 2016, the average age of those voting by mail in the general election who were under 65 was 42 years old, exactly where it should be statistically near the midpoint between 18 and 64. But in 2018, the average age of those using mail-in ballots in Texas plunged to 36. While there were additional college-age voters who had their ballots mailed to them, the massive statistical shift suggests something else was happening: campaigns, organizations, or voters under age 65 were illegally checking the “disability” box to inappropriately receive a ballot at home.
That this happened in 2018 presaged 2020’s preelection maneuvering where there have been multiple legal pushes as well as independent county efforts to overturn Texas election law—or at least undermine it—to allow anyone to receive a mail-in ballot under the novel theory that fear of being infected by COVID-19 constitutes a disability.
This fight has already generated decisions in the Texas Supreme Court and the U.S. Court of Appeals for the Fifth Circuit leading to Attorney General Ken Paxton issuing yet another guidance letter to Texas county judges and election officials. Paxton’s letter warned county officials that voters cannot claim a disability based on fears of contracting a virus, contrary to claims made by elected officials and activist groups.
Following an adverse ruling from the Texas Supreme Court, Democrats and allied independent groups who had sued to expand voting by mail moved to drop their case in state courts, but continue to pursue action at the federal Fifth Circuit in spite of that court’s ruling that blocked a lower court’s order to overturn Texas law and allow any Texas voter to vote by mail.
So, why the huge fight over voting by mail in Texas? With five states conducting all elections by mail (Colorado, Hawaii, Oregon, Utah and Washington), what’s the problem for Texas?
First of all, it took those states many years to transition to an all-mail election. Systems and safeguards had to be developed and capacity to verify voter lists and returned ballots had to be built up. For Texas to execute a wholesale revision of the way it conducts elections—without a change to election law and no allocated funds—is a recipe for disaster, with disputes over valid ballots and delayed election results (which, of course, may be the point in the first place).
Second, significantly increasing mail-in ballots in Texas would effectively bypass Texas’ voter ID system.
Third, mailing ballots to all Texas voters exposes every voter to coercion by family members or ballot harvesters, an illegal practice well known in the Rio Grande Valley and in many urban precincts.
Fourth, because ballots will be at people’s homes, ballot harvesters and campaign activists will have a far greater incentive to go door-to-door to literally collect votes, greatly increasing the chance of spreading the coronavirus as compared to voting early in person at the local polling place while maintaining social distancing protocols. Recent protests, sometimes accompanied by violence, add an interesting dimension, with many of the same officials calling for expanded mail-in balloting to protect voters from the virus also supporting densely packed crowds in the streets while also urging people to stay home and not go shopping or go to work—it’s enough to give a person cognitive whiplash.
Fifth, all-mail elections can significantly increase the costs to run an election. Harris County, in anticipation of court rulings or expecting campaigns and independent groups to violate Texas election law by assuring nondisabled voters under age 65 to go ahead and check the “disability” box anyway, appropriated $12 million in additional funds for mail and printing of ballots and envelopes.
Mail-in ballots have a less secure chain of custody than does voting in person. This opens mail-in ballots to tremendous vulnerability. That’s why the Texas Legislature, in the 2017 special session, moved to tighten the rules for how mail-in ballots may be handled by campaign workers.
But just because something has been made illegal, doesn’t mean that election activists, with great power at stake, won’t try to get around the law. The actions in the courtroom and in some of Texas’ largest counties strongly suggest that the fight over illegally expanding the use of mail-in ballots is far from over.